LAYA, JR. vs. CA et Al.

G.R. No. 205813; January 10, 2018

BERSAMIN, J.:

An employee in the private sector who did not expressly agree to the terms of an early retirement plan cannot be
separated from the service before he reaches the age of 65 years. The employer who retires the employee
prematurely is guilty of illegal dismissal, and is liable to pay his backwages and to reinstate him without loss of
seniority and other benefits, unless the employee has meanwhile reached the mandatory retirement age under
the Labor Code, in which case he is entitled to separation pay pursuant to the terms of the plan, with legal interest
on the backwages and separation pay reckoned from the finality of the decision.

FACTS:

 On 1 June 2001, petitioner Alfredo F. Laya, Jr. was hired by respondent Philippine Veterans Bank (PVB)
as its Chief Legal Counsel with a rank of Vice President. The terms and conditions (benefits) of his
appointment as a Senior Officer of the Bank, among others, are (1) Membership in the Provident Fund
Program/Retirement Program and (2) Entitlement to any and all other basic and fringe benefits enjoyed
by the officers; core of the Bank relative to Insurance covers, Healthcare Insurance, vacation and sick
leaves, among others."
 On the other hand, private respondent has its Retirement Plan Rules and Regulations which provides
that (1) The normal retirement date of a Member shall be the first day of the month coincident with or
next following his attainment of age 60 (ARTICLE IV [Retirement Dates], Sec 1); (2) A Member may,
with the approval of the Board of Directors, retire early on the first day of any month coincident with or
following his attainment of age 50 and completion of at least 10 years of Credited Service (Sec 2); (3) .
A Member may, with the approval of the Board of Directors, extend his service beyond his normal
retirement date but not beyond age 65. Such deferred retirement shall be on a case by case and yearly
extension basis.
 On 14 June, 2007, petitioner was informed thru letter by the private respondent of his retirement effective
on 1 July 2007. On 21 June 2007 petitioner wrote Col. De Ocampo, Chairman of respondent bank,
requesting for an extension of his tenure for two (2) more years pursuant to the Bank's Retirement Plan
(Late Retirement).
 On 26 June 2008, private respondent issued a memorandum directing the petitioner to continue to
discharge his official duties and functions as chief legal counsel pending his request. However on 18
July 2007, petitioner was informed thru its president Balbido Jr. that his request for an extension of
tenure was denied.
 According to the petitioner, he was made aware of the retirement plan of respondent Philippine Veterans
Bank (PVB) only after he had long been employed and was shown a photocopy of the Retirement Plan
Rules and Regulations, but PVB's President Balbido, Jr. had told him then that his request for extension
of his service would be denied "to avoid precedence." He sought the reconsideration of the denial of the
request, but PVB certified his retirement from the service as of July 1, 2007 on March 6, 2008.
 On December 24, 2008, the petitioner filed his complaint for illegal dismissal against PVB and Balbido,
Jr. in the NLRC to protest his unexpected retirement.
 The Labor Arbiter - dismissed the complaint for illegal dismissal for lack of merit with 200K indemnity
 After his MR was denied, the petitioner appealed to the NLRC.
 NLRC - affirmed the dismissal of the petitioner's complaint, and deleted the indemnity imposed by the
Labor Arbiter
 The petitioner filed Certiorari to the CA - promulgated the now assailed decision, holding that the
petitioner's acceptance of his appointment as Chief Legal Officer of PVB signified his conformity to the
retirement program; that he could not have been unaware of the retirement program which had been in
effect since January 1, 1996; that the lowering of the retirement age through the retirement plan was a
recognized exception under the provisions of Article 287 of the Labor Code. MR denied.
 Petitioner filed a petition for review with the Supreme Court (First Division) - denied
 In his MR, the petitioner not only prayed for the reconsideration of the denial but also sought the referral
of his petition to the Court En Banc, arguing that the CA and the NLRC had erroneously applied laws
and legal principles intended for corporations in the private sector to a public instrumentality like
PVB; and that to allow the adverse rulings to stand would be to condone the creation of a private
corporation by Congress other than by a general law on incorporation – denied

Page 1 of 5
  The petitioner filed a second MR whereby he expounded on the issues he was raising in his first MR.
He urged that the Court should find and declare PVB as a public instrumentality; that the law applicable
to his case was Presidential Decree No. 1146 (GSIS Law), which stipulated the compulsory retirement
age of 65 years; and that the compulsory retirement age for civil servants could not be "contracted out."
 The Court En Banc accepted the referral of this case by the First Division. PVB and OSG were required
to file comment. The comment of PVB poses several challenges to the petition: (1) the case has already
attain finality with petitioner’s first MR being denied (violation of immutability of final judgment) (2)
Petitioner should not be allowed to pose attack on PVB’s corporate existence for the first time in this
appeal; (3) It is not a public or government entity for several reasons, namely: (a) the Government does
not own a single share in it; (b) the Government has no appointee or representative in the Board of
Directors, and is not involved in its management; and (c) it does not administer government funds. (4)
PVB insists that its creation as a private bank with a special charter does not in any way violate Section
16, Article XII of the Constitution - That Republic Act Nos. 3518 and 7169 do not fall within the
proscription against the creation of private corporations is readily apparent from the fact that in both
laws, the intendment of the legislature is that Veterans Bank will eventually be operated, managed and
exist under the general laws, i.e., Corporation Code and General Banking Act. The mere circumstance
that the charter was granted directly by Congress does not signify that only Congress can modify or
abrogate it by another enactment. It is operating under and by virtue of the Corporation Code and the
General Banking Act.42
 The OSG presents an opinion favorable to the position of the petitioner - Boy Scouts of the Philippines
v. Commission on Audit and Article 44 of the Civil Code that PVB is a public corporation created in the
public interest, and a government instrumentality with juridical personality; hence, the law governing the
petitioner's compulsory retirement age was Republic Act No. 8291, and the compulsory retirement age
for him should be 65 years.

ISSUES:

(1) Whether or not the Court could accept the petitioner's second MR - YES;

(2) Whether PVB is a private entity or a public instrumentality – private entity; and

(3) Whether the petitioner was validly retired by PVB at age 60. - NO

RULING:

The appeal by the petitioner should be given due course.

1. Yes. The Court En Banc properly accepted the petitioner's second motion for reconsideration.

At the outset, the Court emphasizes that second and subsequent motions for reconsideration are, as a general
rule, prohibited. Section 2, Rule 52 of the Rules of Court provides that "[n]o second motion for reconsideration
of a judgment or final resolution by the same party shall be entertained." The rule rests on the basic tenet of
immutability of judgments. "At some point, a decision becomes final and executory and, consequently, all
litigations must come to an end."

The general rule, however, against second and subsequent motions for reconsideration admits of settled
exceptions. For one, the present Internal Rules of the Supreme Court, particularly Section 3, Rule 15
thereof that the Court shall not entertain a second motion for reconsideration, and any exception to this
rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-
thirds of its actual membership. There is reconsideration "in the higher interest of justice" when the
assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of
causing unwarranted and irremediable injury or damage to the parties. A second motion for
reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by
operation of law or by the Court's declaration.

Page 2 of 5
It is also recognized that in some instances, the prudent action towards a just resolution of a case is for
the Court to suspend rules of procedure, for "the power of this Court to suspend its own rules or to
except a particular case from its operations whenever the purposes of justice require it, cannot be
questioned." In De Guzman v. Sandiganbayan, the Court, thus, explained: [T]he rules of procedure should be
viewed as mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Even
the Rules of Court envision this liberality. This power to suspend or even disregard the rules can be so pervasive
and encompassing so as to alter even that which this Court itself has already declared to be final, as we are now
compelled to do in this case x x x.

In Barnes v. Judge Padilla, we ruled: [A] final and executory judgment can no longer be attacked by any of the
parties or be modified, directly or indirectly, even by the highest court of the land. However, this Court has relaxed
this rule in order to serve substantial justice considering (a) matters of life, liberty, honor or property, (b) the
existence of special or compelling circumstances, (c) the merits of the case, (d) a cause not entirely attributable
to the fault or negligence of the party favored by the suspension of the rules, (e) a lack of any showing that the
review sought is merely frivolous and dilatory, and (t) the other party will not be unjustly prejudiced thereby.

In short, the Court may entertain second and subsequent motions for reconsideration when the assailed decision
is legally erroneous, patently unjust and potentially capable of causing unwarranted and irremediable injury or
damage to the parties. Under these circumstances, even final and executory judgments may be set aside
because of the existence of compelling reasons.

It is notable that the retirement program in question herein was established solely by PVB as the employer.
Although PVB could validly impose a retirement age lower than 65 years for as long as it did so with the
employees' consent, the consent must be explicit, voluntary, free, and uncompelled. In dismissing the petition for
review on certiorari, the Court's First Division inadvertently overlooked that the law required the employees'
consent to be express and voluntary in order for them to be bound by the retirement program providing for a
retirement age earlier than the age of 65 years. Hence, the Court deems it proper to render a fair adjudication on
the merits of the appeal upon the petitioner's second motion for reconsideration. Furthermore, allowing this case
to be reviewed on its merits furnishes the Court with the opportunity to re-examine the case in order to ascertain
whether or not the dismissal produced results patently unjust to the petitioner. These reasons do justify treating
this case as an exception to the general rule on immutability of judgments.

2. The Philippine Veterans Bank as a private, not a government, entity.

In Philippine Veterans Bank Employees Union-NUBE v. The Philippine Veterans Bank,52 we pertinently
pronounced: Coming now to the ownership of the Bank, we find it is not a government bank, as claimed by the
petitioners. The fact is that under Section 3(b) of its charter, while 51 % of the capital stock of the Bank was
initially fully subscribed by the Republic of the Philippines for and in behalf of the veterans, their widows, orphans
or compulsory heirs, the corresponding shares of stock were to be turned over within 5 years from the
organization by the Bank to the said beneficiaries who would thereafter have the right to vote such common
shares. The balance of about 49% was to be divided into preferred shares which would be opened for
subscription by any recognized veteran, widow, orphans or compulsory heirs of said veteran at the rate of one
preferred share per veteran, on the condition that in case of failure of any particular veteran to subscribe for any
preferred share of stock so offered to him within thirty (30) days from the date of receipt of notice, said share of
stock shall be available for subscription to other veterans in accordance with such rules or regulations as may
be promulgated by the Board of Directors. Moreover, under Sec. 6(a), the affairs of the Bank are managed by a
board of directors composed of eleven members, three of whom are ex officio members, with the other eight
being elected annually by the stockholders in the manner prescribed by the Corporation Law. Significantly, Sec.
28 also provides as follows: Sec. 28. Articles of incorporation. - This Act, upon its approval, shall be deemed and
accepted to all legal intents and purposes as the statutory articles of incorporation or Charter of the Philippine
Veterans' Bank; and that, notwithstanding the provisions of any existing law to the contrary, said Bank shall be
deemed registered and duly authorized to do business and operate as a commercial bank xxx.

This point is important because the Constitution provides in its Article IX-B, Section 2(1) that "the Civil
Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters." As the Bank is not

Page 3 of 5
owned or controlled by the Government although it does have an original charter in the form of R.A. No.
3518, it clearly does not fall under the Civil Service and should be regarded as an ordinary commercial
corporation. Section 28 of the said law so provides. The consequence is that the relations of the Bank
with its employees should be governed by the labor laws, under which in fact they have already been
paid some of their claims.

Anent whether PVB was a government or a private entity, therefore, we declare that it is the latter. The foregoing
jurisprudential pronouncement remains to be good law, and should be doctrinal and controlling.

We also note that Congress enacted RA 7169, whereby it acknowledged the Filipino veterans of World War II as
the owners of PVB, but their ownership had not been fully realized despite the implementation of RA 3518. As
one of the mechanisms to rehabilitate PVB, Congress saw fit to modify PVB's operations, capital structure,
articles of incorporation and by-laws through the enactment of RA 7169. By restoring PVB as envisioned by RA
3518, and by providing that the creation of the PVB would be in accord with the Corporation Code, the General
Banking Act, and other related laws, Congress undeniably bestowed upon the PVB the personality of a private
commercial bank through RA 7169. In that regard, Section 8 of RA 7169 directed the Filipino veterans to raise
₱750M in total unimpaired capital accounts, prior to PVB's reopening, but excused the Government from making
any new capital infusion. It is hereby provided that the Board of Trustees of the Veterans of World War II (BTVWW
II) created under RA 3518 is hereby designated as trustee of all issued but undelivered shares of stock.

With the Government having no more stake in PVB, there is no justification for the insistence of the petitioner
that PVB "is a public corporation masquerading as a private corporation."

3. Petitioner Alfredo Laya was not validly retired at age 60

Notwithstanding the rejection of the petitioner's insistence that PVB was a public corporation, we find and declare
that the petitioner was not validly retired at age 60.

The retirement of employees in the private sector is governed by Article 287 of the Labor Code. Under the
provision, the employers and employees may agree to fix the retirement age for the latter, and to embody their
agreement in either their collective bargaining agreements (CBAs) or their employment contracts. Retirement
plans allowing employers to retire employees who have not yet reached the compulsory retirement age of 65
years are not per se repugnant to the constitutional guaranty of security of tenure, provided that the retirement
benefits are not lower than those prescribed by law.

We disagree with the conclusion - CA concluded that the petitioner had agreed to be bound by the retirement
plan of PVB when he accepted the letter of appointment as its Chief Legal Counsel. We declare that based on
the clear circumstances herein the CA erred in so concluding.

The petitioner's letter of appointment pertinently stated:

3. As a Senior Officer of the Bank, you are entitled to the following executive benefits: XXX

• Membership in the Provident Fund Program/Retirement Program.

• Entitlement to any and all other basic and fringe benefits enjoyed by the officers; XXX

Obviously, the mere mention of the retirement plan in the letter of appointment did not sufficiently inform the
petitioner of the contents or details of the retirement program. To construe from the petitioner's acceptance of his
appointment that he had acquiesced to be retired earlier than the compulsory age of 65 years would, therefore,
not be warranted. This is because retirement should be the result of the bilateral act of both the employer and
the employee based on their voluntary agreement that the employee agrees to sever his employment upon
reaching a certain age.

Page 4 of 5
That the petitioner might be well aware of the existence of the retirement program at the time of his engagement
did not suffice. His implied knowledge, regardless of duration, did not equate to the voluntary acceptance required
by law in granting an early retirement age option to the employee. The law demanded more than a passive
acquiescence on the part of the employee, considering that his early retirement age option involved conceding
the constitutional right to security of tenure.

In Cercado v. Uniprom, Inc., we have underscored the character of the employee's consent in agreeing to the
early retirement policy of the employer, viz.:

Acceptance by the employees of an early retirement age option must be explicit, voluntary, free, and
uncompelled. While an employer may unilaterally retire an employee earlier than the legally permissible ages
under the Labor Code, this prerogative must be exercised pursuant to a mutually instituted early retirement plan.
In other words, only the implementation and execution of the option may be unilateral, but not the adoption and
institution of the retirement plan containing such option. For the option to be valid, the retirement plan containing
it must be voluntarily assented to by the employees or at least by a majority of them through a bargaining
representative.

Furthermore, the petitioner's membership in the retirement plan could not be justifiably attributed to his signing
of the letter of appointment that only listed the minimum benefits provided to PVB's employees. A perusal of
PVB's retirement plan shows that under its Article III all the regular employees of PVB were automatically
admitted into membership. Having thus automatically become a member of the retirement plan through his
acceptance of employment as Chief Legal Officer of PVB, the petitioner could not withdraw from the plan except
upon his termination from employment.

It is also notable that the retirement plan had been in existence since January 1, 1996, or more than five years
prior to the petitioner's employment by PVB. The plan was established solely by the PVB, and approved by its
president. As such, the plan was in the nature of a contract of adhesion, in respect to which the petitioner was
reduced to mere submission by accepting his employment, and automatically became a member of the plan.
With the plan being a contract of adhesion, to consider him to have voluntarily and freely given his consent to the
terms thereof as to warrant his being compulsorily retired at the age of 60 years is factually unwarranted.

In view of the foregoing, the Court disagrees with the view tendered by Justice Leonen to the effect that the
petitioner, because of his legal expertise and educational attainment, could not now validly claim that he was not
informed of the provisions of the retirement program. The pertinent rule on retirement plans does not presume
consent or acquiescence from the high educational attainment or legal knowledge of the employee. In fact, the
rule provides that the acquiescence by the employee cannot be lightly inferred from his acceptance of
employment.

To stress, company retirement plans must not only comply with the standards set by the prevailing labor laws
but must also be accepted by the employees as commensurate to their faithful services to the employer within
the requisite period. Although the employer could be free to impose a retirement age lower than 65 years for as
long its employees consented,81 the retirement of the employee whose intent to retire was not clearly established,
or whose retirement was involuntary is to be treated as a discharge.

With the petitioner having been thus dismissed pursuant to the retirement provision that he had not knowingly
and voluntarily agreed to, PVB was guilty of illegal dismissal as to him. Being an illegally dismissed employee,
he was entitled to the reliefs provided under Article 27983 of the Labor Code. Considering that the petitioner's
reinstatement is no longer feasible because of his having meanwhile reached the compulsory retirement age of
65 years by June 11, 2012, he should be granted separation pay. In this regard, retirement benefits and
separation pay are not mutually exclusive. The basis for computing the separation pay should accord with Section
4, Article III of PVB's retirement plan. Hence, his full backwages should be computed from July 18, 2007 - the
date when he was illegally dismissed - until his compulsory retirement age of 65 years on June 11, 2012. Such
backwages shall all be subject to legal interest of 12% per annum from July 18, 2007 until June 30, 2013, and
then to legal interest of 6% interest per annum from July 1, 2013 until full satisfaction.

WHEREFORE, the Court GRANTS the petition for review on certiorari.

Page 5 of 5